Delia Sheffield, an Infant, by Alfred Sheffield, Her Guardian ad Litem, and Alfred Sheffield, Appellants, v. John C. Yager and Others, Respondents

Delia Sheffield, an Infant, by Alfred Sheffield, Her Guardian ad Litem, and Alfred Sheffield, Appellants, v. John C. Yager and Others, Respondents. First Department, May 5, 1939. Edward A. Shandell of counsel [Desmond T. Barry with him on the brief], for the appellants. William B. Shelton of counsel [William J. McArthur], for the respondents John C. Yager and Emily Yager. Frederic J. Locker of counsel [E. C. Sherwood], for the respondent Beaury. [MAJORITY — Per Curiam.] Per Curiam. The charge of the court that the infant plaintiff “ is not held to such a high degree of care as an adult or a person of mature years ” was inadequate as a statement of the principles of law applicable to a child eight years of age, for the court failed to charge the degree of care to be required. The court should, in' substance, have charged at the request of the plaintiffs’ attorney that the duty of the infant plaintiff was to exercise a degree of care commensurate with her age and capacity. The judgment and order should be reversed and a new trial ordered, with costs to the appellants to abide the event. Present — Martin, P. J., Glennon, Untermyer, Cohn and Callahan, JJ.; Callahan, J., concurs in result; Cohn, J., dissents. Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.